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IP Ingredients, Part 8: Exploring Non-Traditional Marks in the Food and Drink Industry

February 2024

Traditionally, trade marks have been associated with brand names, logos, and slogans.  However, in today’s dynamic business landscape, non-traditional brand assets are gaining prominence especially in the food and drink industry.  Colours, shapes, patterns, position marks and sounds are becoming powerful tools for companies trying to distinguish their products and create a unique identity in the mark as well as contributing to brand loyalty.

In a crowded marketplace, where consumers often make choices based on personal preferences and emotions, products need to stand out on shelves. Legal protection through trade mark registration for these brand assets becomes an important tool in the brand owners’ arsenal, offering legal protection against imitation and infringement as well as preventing competitors from copying or closely imitating a brand’s visual or auditory identity.

However, obtaining trade mark protection for these types of non-traditional marks can be more difficult than for “traditional” types of trade marks.

Colours

Colours are often referred to by consumers and used by brand owners to establish brand recognition.  Think of the purple colour used by Cadbury on their chocolate bars, or the blue and silver colour combination used by Red Bull.  In the food and drink industry, colours play a significant role in evoking specific emotions and associations.  They go beyond aesthetics and create a powerful link between the consumer and the brand, enhancing brand identification, loyalty and recall.

 

Shapes

Shapes, often overlooked in traditional trade mark discussions, are gaining ground as unique identifiers in the food and drink sector.  Companies are using distinctive shapes to set their products apart from the competition.  Consider the iconic Coca-Cola bottle, instantly recognizable for its contoured silhouette.  Similarly, the Toblerone chocolate bar’s triangular shape is not just a design choice but a trade mark that distinguishes it from other chocolate brands.

 

As companies continue to explore innovative packaging and presentation, the importance of shapes as non-traditional trade marks is likely to grow.

For shape marks to be accepted for registration absent evidence of acquired distinctiveness through use, it is necessary to show that the shape in question diverges significantly from the norms and customs of the sector concerned and is capable of functioning as an indicator of origin. They must also not (i) result from the nature of the goods themselves, (ii) be necessary to obtain a technical result or (iii) give substantial value to the goods.

Sounds

In a world filled with visual stimuli, sounds offer a unique and often underutilized avenue for brand recognition.  The “I’m Lovin’ it” jingle by McDonalds or the “ho ho ho” of the Green Giant sweetcorn brand are examples of sound trade marks that have become inseparable from their respective brands.  Sounds not only enhance brand recall but also contribute to the overall consumer experience.

 

Recent trade mark reforms have made it easier to register sound trade marks.  ‘Sound’ is now included in the definition of a trade mark in the UK and EU, and the graphical representation requirement has been replaced.  Therefore, sounds, that until recently had to be represented graphically, can now be uploaded as a digital sound file.  However, a sound mark does still need to meet the requirements of all trade marks, including importantly the need for it to be capable in and of itself of function as a badge of origin for consumers.

Conclusion

In the ever-evolving landscape of trade marks, non-traditional elements like colours, shapes and sounds are proving to be indispensable in the food and drink industry.  As consumer preferences continue to shift towards experiences and emotional connections, companies that leverage these non-traditional brand assets effectively stand to create a lasting impact in the market.

Utilizing trade marks to protect these assets can provide the brand owner with a strategic advantage by enabling them to stop others from adopting something the same or similar.  Trade mark protection also has the benefit of providing longer term protection, unlike protection via Registered Design rights, for example, which have a limited life-span.  Therefore, while these non-traditional brand elements can be difficult to protect as trade marks, they are, in the right circumstances, worth the attempt.

Some key takeaways to consider when considering trade mark protection for a non-traditional mark:

1)     Identify what the distinctive elements of your brand are and what consumers recognise, and consider with your IP Attorney how best to protect these, including whether trade mark protection may be possible.

2)     Before filing for a non-traditional trade mark take time to prepare and consider how you want to represent your mark in the application so that it meets the criteria of clarity and specificity.

3)     Keep detailed records to evidence that the mark is identified by your customers as a badge of origin and that it has acquired distinctiveness through use.

For more advice on non-traditional trade marks. please contact the author, Tanya Waller at [email protected].


This article was prepared by Trade Mark Director Tanya Waller

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